A major Hollywood court win against the IsoHunt torrent site has been upheld on appeal. In a ruling (PDF) issued this morning, a three-judge panel found that IsoHunt and its founder Gary Fung had illegally induced users to swap copyrighted files.

After seven years of litigation, the site may finally have to adopt some serious filtering. Fung was first sued by Columbia Pictures in 2006, lost his case in 2009, and was slapped with a strongly worded injunction in 2010. That injunction allowed content companies to submit long lists of search terms to Fung that he was supposed to filter for. However, despite Fung's court losses, IsoHunt today doesn't appear to be functionally very different from the site that the entertainment industry objected to back in 2006. Searches for copyrighted material readily turn up lists of files with names that strongly suggest they are infringing.

Even if you interpret the data in a light favorable to IsoHunt, there's no question that the site's main use was to trade copyrighted material, the judges wrote. Columbia's expert found that between 90 and 96 percent of content on the site was confirmed or "highly likely" to infringe copyright. And while Fung "takes issue" with some aspects of the methodology, "he does not attempt to rebut the factual assertion that his services were widely used to infringe copyrights." Even tripling the margin of error on the Columbia survey would mean that the overwhelming use of IsoHunt was to violate copyright.

No “safe harbor” for Fung, who helped users break the law

IsoHunt's argument that the site should be protected by the "safe harbor" of the Digital Millennium Copyright Act (DMCA) didn't impress the appeals judges, although they took a somewhat different tack than the Los Angeles District Court judge who first heard the case. He had ruled that Fung wasn't protected by DMCA "safe harbors" at all. "Fung had 'red flag' knowledge of a broad range of infringing activity," write the judges.

Fung personally urged his users to upload and download particular copyrighted works; he helped users watch copyrighted films and burn DVDs. And he didn't deny that he personally had used his site to download infringing material.

And while his tools attracted hordes of users looking to swap copyrighted material, Fung got rich from advertising. One of the factors that can kick you out of the safe harbor is getting a "financial benefit directly attributable to the infringing activity." The US Court of Appeals for the 9th Circuit, which heard this case, has never before specified if that phrase applied to a site like Fung's, which makes its money off advertising to users. Today, it made clear that it does.

Fung explicitly used the fact that his site was full of illegal files to make more money off ads. The court noted: "Fung marketed... to one advertiser by pointing to the 'TV and movies... at the top of the most frequently searched by our viewers,' and provided another with a list of typical user search queries, including popular movies and television shows."

The court also found that Fung's IsoHunt was more than a passive search engine for Torrent files, in part because of the activity of torrent "trackers." If the Plaintiffs can show a "connection between users' infringing activity and the use of Fung's trackers, the fact that torrent files were obtained from elsewhere may not relieve Fung of liability," wrote the judges.

Ira Rothken, the lawyer representing Fung and IsoHunt, took particular issue with the court's holding on trackers. "The logic of the tracker exception is inconsistent with the plain meaning of the safe harbor and puts at risk a large part of the Internet infrastructure, including, for example, automated intelligent load balancers," he wrote to Ars in an e-mail today.

Courts don't care what’s “under the hood”

The case against IsoHunt is the latest in an essentially unbroken stream of cases in which file-sharing services have been shut down by courts. Napster, Grokster, Aimster, KaZaa. As Internet law professor Eric Goldman noted when IsoHunt lost its case in 2009, the fact that peer-to-peer file-sharing technology has changed over the years doesn't really matter much. "[C]ourts don't really care how file sharing technology works under the hood," he noted. "We have P2P copyright law on the one hand, and mainstream copyright law on the other, and it simply isn’t possible to harmonize them."

No matter how often these services claim they are just performing mainstream functions—the "We're just like Google!" defense—courts aren't going to accept it. File-sharing services have looked bad since Napster, and they continue to have a serious PR problem. The road-map for services that want to survive using the safe harbor is better mapped by a case like UMG v. Veoh, which successfully beat Universal Music in court. Of course, it didn't matter that much for Veoh, which had gone bankrupt in any case, in part due to litigation costs.

The court did rule that minor changes should be made to the injunction order against Fung. For example, he's barred from "indexing or providing access" to torrent files "harvested or collected from well-known infringing sites, such as 'The Pirate Bay.'" The court ruled that Columbia and its co-plaintiffs will have to provide the names of specific sites that Fung must block. Overall, though, it rejected Fung's argument that the injunction is overly broad.

Rothken says he'll pursue an en banc re-hearing of the case by the full 9th Circuit. That's a longshot, since not many such requests are granted, but it's not out of the question in a tumultuous area of the law like file-sharing. "Inducement must be more than a gestalt standard especially when the Court is taking away a person's right to a jury trial," Rothken wrote. "Ambiguous copyright standards chill innovation." Fung's case should be heard by a jury, he said.

The Motion Picture Association of America, meanwhile, fired off a press release saying it's looking forward to seeing the case go back to district court, where Fung should face a trial on damages. "Those who build businesses around encouraging, enabling, and helping others to commit copyright infringement are themselves infringers, and will be held accountable for their illegal actions," said MPAA general counsel Henry Hoberman.

97 Reader Comments

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

yeah, well the game of whac-a-mole continues. This will not stop any but the most casual pirates. Pirate Bay is alive and well, and many others, making ISOHUNT irrelevant.

Blew off 'red flags'? Give me a break here. Listen, you ignominious idiots on this court..... A 'PIRATED' DOWNLOAD DOES NOT EQUAL A LOST SALE!

99.99% of the time the people in question cannot afford the actual legitimate thing in question, have already paid for it via cable or satellite TV (which includes music channels today), or the thing in question is not available in their country for sale at all or anymore.

This whole article reads like some MAFIAA attempted brainwashing and I don't give a SHIT what the courts 'won't accept'. The courts can kiss my ass on this subject and if the 'rightsholders' try to sue me, they had better be ready for me to drag this out in the courts for 20 years.

MAFIAA is permanently Censored from my Wallet.They will lose on all the money I would of spent on their Content for the last 8 or so years.All the times I would of bought legal content and all the times I would of gone to a Theater.I could not even add the amount in thousands if not tens of thousands that just me have Cost them.Now if I really want their trash I will buy it used and physical well after it streets and when it is dirt cheap.

I have no problems shifting my spending into an only Local and Indie Art Non-DRM Mode.I won't ever eat Dirty Rotten Media...........tastes like moldy bad food anyways.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

yeah, well the game of whac-a-mole continues. This will not stop any but the most casual pirates. Pirate Bay is alive and well, and many others, making ISOHUNT irrelevant.

I'm not sure how Pirate Bay makes ISOhunt irrelevant when it included Pirate Bay in it's results?

It's definitely my first place I go when looking for torrents. As of right now it's still up.

If you're wondering how they arrived at this conclusion, you have to look at precisely how strictly the law interprets the Safe Harbor exemption. The "red flags" mentioned in the article are legal tests intended to establish what an operator knows about the content available on his site, and these red flags are used to take down site operators.

In short: If you plan on operating a hosting service, you have to physically have no way of determining what is being hosted on your servers or you will trip the red flag standard. This is how they get every site ever, because administrators the world over would never operate their sites with no scrutiny whatsoever.

I wonder how many sites they'll have to shut down before they realise it's fruitless and actually start to provide a distribution model that the public wants.

How do you not understand, "this content is NOT available in your country!" NO means NO, haven't you been taught that already?

On a more serious note, I happen to live in a non-US country and therefore most legal ways of obtaining content online (by this I mean streaming like Hulu or CrunchyRoll) are of course closed-off to me (some can be circumvented though, e.g. using a browser plugin to access Hulu), and until such time when the content providers decide to get off their asses and realise there aren't any country borders on the internet, I am happy to use alternative means. I have no trouble at all sleeping at night.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material?

What is it exactly that they're stealing? If X downloads an mp3 from IsoHunt or not, is there a variance in revenues for the music industry? None.. as proven again and again by shutting down so many content sharing services. So... what are they stealing?

Blew off 'red flags'? Give me a break here. Listen, you ignominious idiots on this court..... A 'PIRATED' DOWNLOAD DOES NOT EQUAL A LOST SALE!

99.99% of the time the people in question cannot afford the actual legitimate thing in question, have already paid for it via cable or satellite TV (which includes music channels today), or the thing in question is not available in their country for sale at all or anymore.

This whole article reads like some MAFIAA attempted brainwashing and I don't give a SHIT what the courts 'won't accept'. The courts can kiss my ass on this subject and if the 'rightsholders' try to sue me, they had better be ready for me to drag this out in the courts for 20 years.

Whether a sale is lost or not doesn't matter to the legality of the issue. It's pretty clear that the law is against such activity. Now whether the law *should* be against them, that is another matter, as is the question of whether piracy is good or bad for sales, but again: not really relevant.

And you better have a lot of money saved up if you want to drag a case through the courts for 20 years.

In short: If you plan on operating a hosting service, you have to physically have no way of determining what is being hosted on your servers or you will trip the red flag standard. This is how they get every site ever, because administrators the world over would never operate their sites with no scrutiny whatsoever.

Neither Veoh nor YouTube used such an "ignorance is bliss" strategy, and both companies were able to successfully use the safe harbor. They were found to not have ignored "red flags."

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

I don't think anyone is pretending otherwise, its breakdown is probably about 90% copyrighted, 5% linux and 5% other kinds of freeware. What I do have an issue with is the fact that it is a linking site (most of the searches go to TPB) and another case of them not hosting anything, but getting in trouble because they are easy to hit in the public opinionAlso: http://dictionary.reference.com/browse/steal?s=t "downloading" something and "stealing" it are two different things, these sites don't "steal copyrighted material"

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

Downloading unauthorised copies is unlawful, but it is NOT "stealing". There is a very good reason why downloaders never ever get charged with theft....

If you're making a copy, you aren't stealing the item (removing it from the owner's possession).

If you have a magic car copying machine, you're more than welcome to come and take a copy of my car, any time. Hell, you can come and take a copy of my dog if you want! In fact don't even bother knocking on my door, just help yourself. No theft involved.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

yeah, well the game of whac-a-mole continues. This will not stop any but the most casual pirates. Pirate Bay is alive and well, and many others, making ISOHUNT irrelevant.

Yes, whack a mole is a good analogy.

Every operator should expect to be smacked for violating copyright law until they actually make a service that is legal.

obzilla wrote:

So if they use magnet links only they'd be ok?

Oh well, another will rise to take it's place....

I wonder how many sites they'll have to shut down before they realise it's fruitless and actually start to provide a distribution model that the public wants.

It's their business model. Since that's how they get paid, they will continue to shut down these sites because they violate copyright.

Lost sale or not, copyright holders do have the legitimate right to shut down these sites. This won't end until copyright holders change business models (where the more a work is copied the more money they make) or copyright law changes (where copying without the rightholder's consent is legal).

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

Downloading unauthorised copies is unlawful, but it is NOT "stealing". There is a very good reason why downloaders never ever get charged with theft....

If you're making a copy, you aren't stealing the item (removing it from the owner's possession).

If you have a magic car copying machine, you're more than welcome to come and take a copy of my car, any time. Hell, you can come and take a copy of my dog if you want!

Blew off 'red flags'? Give me a break here. Listen, you ignominious idiots on this court..... A 'PIRATED' DOWNLOAD DOES NOT EQUAL A LOST SALE!

99.99% of the time the people in question cannot afford the actual legitimate thing in question, have already paid for it via cable or satellite TV (which includes music channels today), or the thing in question is not available in their country for sale at all or anymore.

This whole article reads like some MAFIAA attempted brainwashing and I don't give a SHIT what the courts 'won't accept'. The courts can kiss my ass on this subject and if the 'rightsholders' try to sue me, they had better be ready for me to drag this out in the courts for 20 years.

Brave words, but you might want to check with Joel Tenenbaum or Jammi Thomas about how they feel after being dragged through the courts - for considerably less than 20 years.

Whether a pirated work equals a lost sale, whether the works in question are "worth" the price they are offered for, or whether "99.99% of the time the people in question cannot afford" the product has no real relevance to this case and you know it.

Those arguments, no matter how many times they are made, do nothing to help further this type of debate. There are very real issues we should be worried about - the "slippery slope" whereby real, actual freedoms are eroded in the name of protecting rightsholders, and that is what we should be worried about, not about whether the "MAFIAA" is coming to get us.

if hollywood was smart, they would just release them as torrents in a new format at a decent quality that pulls down & plays ads... That, or get shit on services like netflix faster, look at what hulu did for US tv torrents from americans. Open hulu to more countries & it will drop accordingly as people say "ooh" & adjust. I can't remember when I last torrented a tvshow without first saying "is it on hulu" & checking As for hulu, some of the korean dramas on hulu are really good (faith, & the great seer to name a couple), bbc stuff like spy, whites, misfits, etc as well

So, they allow pictures of naked children on the walls of the 9th circuit court? I might be arrested for child pornography for having that in my browser cache now but they can put it up on a wall? Really!

Generally the only time I resort to a Torrent site to get the content I want it is because the producer refuses to give me the content otherwise. I want it when I want it, and the supplier has to adapt to the consumer. If you can't service me I know plenty of free outlets that are more than willing to.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

like we need another debate on stealing versus copying. move on and accept the word as shorthand for the act distributing copyrighted material.

Yeah, never going to happen. Accept that you need to use correct terminology. If you must use slang, use "piracy" (although even that is not really correct - it used to only apply to people selling illegal copies).

OrangeCream wrote:

Lost sale or not, copyright holders do have the legitimate right to shut down these sites. This won't end until copyright holders change business models (where the more a work is copied the more money they make) or copyright law changes (where copying without the rightholder's consent is legal).

What?Copyright holders have no rights, and no power, to shut down anything.The authorities have that right if, and only if, a court decides "these sites" are actually illegal.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

Downloading unauthorised copies is unlawful, but it is NOT "stealing". There is a very good reason why downloaders never ever get charged with theft....

If you're making a copy, you aren't stealing the item (removing it from the owner's possession).

If you have a magic car copying machine, you're more than welcome to come and take a copy of my car, any time. Hell, you can come and take a copy of my dog if you want!

The difference being that you aren't the copyright holder.

No idea what you're trying to say. I made one point, and one point only: copying is not theft.

Can we stop pretending that the sole purpose of these sites isn't to steal copyrighted material? Regardless of your views on the whole piracy issue, that's what this site is for. I seriously do not understand how anyone could even attempt to argue otherwise.

Bummer though. On the few occasions I've torrented stuff (usually because it's not released in the US), I've used ISOhunt

Downloading unauthorised copies is unlawful, but it is NOT "stealing". There is a very good reason why downloaders never ever get charged with theft....

If you're making a copy, you aren't stealing the item (removing it from the owner's possession).

If you have a magic car copying machine, you're more than welcome to come and take a copy of my car, any time. Hell, you can come and take a copy of my dog if you want!

The difference being that you aren't the copyright holder.

No idea what you're trying to say. I made one point, and one point only: copying is not theft.

I'm not disputing that at all.

What I'm saying is that you can't legally say, "come and take a copy of my car, any time," unless you are the copyright holder.

like we need another debate on stealing versus copying. move on and accept the word as shorthand for the act distributing copyrighted material.

Yeah, never going to happen. Accept that you need to use correct terminology. If you must use slang, use "piracy" (although even that is not really correct - it used to only apply to people selling illegal copies).

OrangeCream wrote:

Lost sale or not, copyright holders do have the legitimate right to shut down these sites. This won't end until copyright holders change business models (where the more a work is copied the more money they make) or copyright law changes (where copying without the rightholder's consent is legal).

What?Copyright holders have no rights, and no power, to shut down anything.The authorities have that right if, and only if, a court decides "these sites" are actually illegal.

Semantic argument then.

Copyright holders have the right and power to sue these sites into oblivion under the current copyright laws. A court may find these sites legal, but multiple times now courts have found these sites to be illegal.

Note this suit hasn't gone through the court system fully, but a car is conceptually copyrightable.

Anything that can be reproduced can be subject to copyright. That's the basic premise of copyright! This becomes especially thorny as the distinction between a blueprint and an object blurs thanks to 3D printers; it is akin to the distinction between source code and binary.

If the 'source' is protected (which it is) then the binary is also protected, insofar as modern interpretation of copyright holds to programs, I believe.

So if the original 'design' is protected by copyright, so is the transformed object that is the output of the design.

Of course a court may find that to not be true, but I would be surprised if that were the case.

We need to ensure Shapeways and Thingiverse remain a safe place to show and share ideas and products without them being copied without proper attribution and released in a matter of days thereby devaluing the original. We also need to make sure that Shapeways and Thingiverse do not become flooded with copies and knock-offs of existing designs which would move them away from being a place of innovation to one of suspicion from potential users and copyright protection authorities.

We have of course seen precedents with music, game and movies being pirated and shared, but the relatively small size of the community make this a little more intimate. The fact that this is being played out between two or three people, but watched by many more, who are all passionately involved in pushing design forward with 3D printing may have fueled this to move into a awkward position incredibly quickly, all unfolding within two weeks..

So they are talking about copyright, without trying to actually invoke the law.